A Short Guide to Right of Way Clearing
The process of clearing an area for a right of way involves the removal of trees, brush, and other vegetation to allow for the construction and maintenance of infrastructure such as power lines, pipelines, or roadways. Clearing right of way also includes the grading of the cleared area so that it can be safely traversed, as well as digging ditches for the emplacement of cables, pipes, etc. For utility companies and contractors, clearing right of way is both risky and vital to their operations . A successful right of way clearing contract helps to ensure that utility lines are safely installed, and that they can be maintained without having to unnecessarily challenge important environmental protections.
Right of way clearing can involve years-long contractual relationships with landowners, during which time foresters are often permitted to remove trees with at least some commercial value. This makes achieving the necessary consent for these contracts all the more significant for the companies that rely on it.
Essential Elements of a Clearing Contract
Understanding Right of Way Clearing Contracts
A clearing contract must define precisely what is expected of the clearing contractor. Therefore, an effective right of way clearing contract is made up of multiple components including a description of the clearing work to be performed, how that work is to be performed, and the terms and conditions for the performance of the clearing work.
Clearing requirements are found within any right of way clearing contract. Clearing requirements can be further broken down into three main areas: the scope of work, the limits of clearing, and the type of clearing. The scope of the clearing contract describes what will be cut or removed and what may remain in the easement (such as standing live trees and shrubs in areas of limited disturbance). Limits of clearing describe where clearing is to take place. For example, clearing limits may describe buffer areas where no clearing occurs, areas where the clearing width is to be limited, or side clearing extending onto adjacent land to protect the right of way corridor from damage by falling trees during an ice storm. The type of clearing can also be described within the clearing contract. For example, the type of clearing may specify: "clear but do not disturb" (clearing requirements become essentially a no cut and only trim contract), nest disturbance, simply trim trees within right of way, or lateral clearing. Nest disturbance is used to prevent baby birds from falling from nests during the right of way clearing operation. Lateral clearing allows for tree pruning in order to prevent interference with the safe passage of aircraft.
The clearing contract may specify how clearing is to be performed. For example, the clearing contract may include: a specification that the clearing does not occur between April 1st and August 31st to protect nesting birds, a schedule for clearing (for example, the clearing to be finished by a certain date), a specification for clearing methods (for example, using chain saws instead of shears), or a notification system for warning adjacent residents that the clearing is about to begin. The clearing contract may also include a specification for restoration of areas after the clearing has been completed. Examples of restoration requirements include: cutting grass, erosion control, and seeding disturbed areas. Additional examples of clearing operations are provable standards of work. For example, ensuring that the right of way clearing does not interfere with the use of properties that are adjacent to the right of way such as planting and maintaining trees to shield cell towers from view.
The clearing contract may specify clearing terms such as: the clearing time period, payment, progress reporting, and inspection clauses. The clearing time period is the time specified for the clearing operation. For example, the clearing may be divided into phases so that the clearing contractor knows when the different phases of the clearing will begin and end. As with all construction contracts, the clearing contract includes progress reports and inspections. Inspection clauses may state that prior to commencing the clearing the clearing contractor must inspect the right of way in a certain manner. For example, one inspection method is to look for wells, cell towers, septic fields, and houses before performing the clearing operation. Another inspection method is requiring the contractor to leave certain structures intact prior to clearing. The clearing contract can also require progress payments (often on a monthly basis) for different phases of the project.
Important Legal Considerations
The law which governs right of way clearing is The Crown Forest Sustainability Act, R.S.B.C. 1996 c. 68. This Act sets out the requirements for the content of the contracts, including provisions for the supervision and inspection of the activities. Logging and timber operations by forest service workers are exempt from the specific licensing and permitting requirements set out in the Forest Act, RSBC 1978 c. 140, but nevertheless must be performed in conformity with the general requirements of the Forest Practices Code of British Columbia Act, 1995, 1995 c. 16. Every right of way clearing contract must describe and impose special requirements concerning (a) the prescribed matters respecting scale, measurement and manufacturing processes; (b) supervision and inspection of conducted work; (c) specifications concerning methods which reduce environmental damage; (d) procedures for approval and acceptance of work performed; and (e) other matters prescribed for the purposes of the Act. Re: Timber Sale Harvesting Contracts. "Timber Sale Harvesting Contracts are also exempt from licensing and permitting requirements set out in the Forest Act. However, as with this exemption for the forest service, the provisions of the Forest Practices Code are not waived. When the contract is entered into, it becomes subject to the administration of the Forest Practices Branch and must conform to the Forest Practices Code and the Forest Practices Board must be allowed to inspect and audit such logging and timber operations. Forest Service Staff requirements of the Act and Forest Practices Code impose that the Forest Service retains control over the cutting of Timber Sale Harvesting public lands." Forest Service Manual FSD 40 was issued to clarify these provisions of the Act, and describes the parties to the agreement, the general requirements, and the provisions for supervision, inspection and administration, specifying the wording for the legally required clauses. Appendix 2 of this manual provides a sample form of agreement for a right of way to be granted to cut timber on Crown Land. If you should go looking for this information on the B.C. Government’s web site, you may be disappointed – I’ve found the links on their page for this act to be broken, and the search mechanism gives me no hits for "right of way clearing", and "clearing agreements" two hits. Neither of these were useful. I would suggest you call their Inquiry Centre at 1-800-787-1720 to request a copy to be mailed out to you if you need one.
Selecting Right of Way Clearing Contractors
Contractor Qualifications:A written specification that defines the requirements, and a written proposal that meets those requirements, for the clearing operation, must be the first step. The specification will contain much more than what is contained in the proposal including requirements to provide necessary safety training and equipment support. The landowners should then check with the Better Business Bureau and other relevant agencies to determine if any complaints are on file against the proposed contractor. A review of the contractor’s litigation history involving shovel, hoe, and other land clearing equipment should be provided by the contractor. Experience and reputation are critical factors in evaluating a land clearing contractor. Large contractors that have demonstrated experience are more likely to have the equipment and personnel to accomplish the project in a timely manner. A contractor should be able to explain how it has met similar contractual obligations in the past. The contractor should be able to provide reference contacts who can substantiate the contractor’s performance record. Know if the contractor is locally owned and operated or a branch of a national corporation. Be aware that although large national corporations advertise bond and insurance coverage, the local branch may not be participating in this program. The proposal should include: The name of the contractor and his corporate status. The contractor’s type of work and number of years experience. The contractor’s bond and insurance coverage. If the contractor’s work is supervised by a general contractor, provide the name of the contractor and the prime contract for the prime contractor’s work. A list of contractors’ licenses, compliance with insurance and labor regulations, utility and pipeline registrations. References from past projects. Experience working on TWCC projects. If possible, an interview of the contractor should be arranged. The contractor should explain: Patterns of PMIS Reports:Tools and methods for clearing ROW’s is a continuing subject of change; new techniques, technologies, and methods are constantly being introduced. When evaluating work results, the consistently reliable contractor will differ from one who gets a few jobs and then disappears for a while before another new contractor appears. The ROW manager must study records of how different patterns affect PMIS reports. Reliability and timely contractor completion of projects needs to be confirmed through a pattern of PMIS reports. This is best done by providing contractor PMIS information to the contractor and requesting a comment. The ROW manager’s ability to recognize unreliable contractors is a valuable resource. Sometimes, a ROW manager may determine in advance that a new contractor (that is not reliable) is attempting to qualify, but knows little about the ROW manager’s awareness.
Doing the Math: Costs and Budgets
Budgeting for a right of way clearing contract can be a tricky endeavor. There are many factors that need to be taken into consideration when estimating costs. And cost discrepancies and variations in actual costs are not unusual.
First, the right of way can actually turn out to be easier or more difficult to clear than anticipated. The right of way can be covered with bushy vegetation that is difficult to clear with a dozer. Or the right of way might have more trees that are over 6 inches in diameter than expected. More time may be needed to clear the right or way than anticipated, at an increase in costs. In addition, due to the location of the right of way, it may be necessary for the contractor to haul timber off site or chip it and process it. All of these factors can increase costs.
Second, costs can vary depending on the location of the right of way. As a result, it is wise to get at least three bids, and to really pay attention to where the contractors are located , and whether their estimated costs are based on hauling costs or travel distances that cut into profits. If the contractor is from a long distance away, and his bid is much lower than other contractor’s bids, it is important to ask detailed questions concerning the amount of time that will be required to reach the right of way and how the contractor accounted for time in his bid.
Third, many of these contracts involve the removal of timber. Timber can be sold to offset costs. Before making a bid, a contractor should perform a complete and thorough inventory of the right of way and measure the amount of timber that is available. Only by measuring the height and diameter of the trees in the right of way can the contractor gauge the value of the timber. Timber mileage may not factor into the final cost to the utility for clearing the right of way because of the value of the timber. As a result, timber value should be accounted for in the contract.
Issues and Solutions
Effective companies know your right of way clearing contract is only as good as the trees are properly cleared. Trees, brush and other obstacles create real challenges. A contractor can do their best but not all contracts include every specification. Contracts usually can’t specify every detail. Best practices in Right of Way clearing and enforcement of your contract are required for all contracts and it’s a good idea to follow them, even if your contract does not.
In Floyd M. McClung v. Stillwater Lakes Development, Inc., 477 S.W.3d 565 (2015), the property owner still spent thousands to clear the property after clearing did not meet the contract requirements. The developer tried to receive payment for the deficient clearing.
"It is undisputed that the Developer failed to clear the property of the trees, stumps, roots, and other debris in accordance with the contract."
The trial court ruled against Stillwater but was reversed by the appellate court. Appellate judges said the trial court properly enforced the contract.
"A contract is enforceable where its terms fairly disclose what the parties to the agreement should do…If there are no uncertainties or ambiguities in a written contract, a court is without power to change the terms of the instrument."
The appellate court talked about the importance of enforcing a clearing contract, especially where Ground Clearing was expected to get paid $652,000 for clearing work. One of the challenges is that a right of way clearing contract often can be done on any number of acres. Some clearing contractors attempt to be too original in how they draft right of way clearing contracts. Designers and land planners have more experience with contracts. Your right of way clearing contract should be written by a professional experienced in all aspects of your contract. Sometimes it’s a good idea to hire a registered landscape architect to help write the clearing contract.
Looking Forward: Trends and Changes
Changes in natural gas production, electric grid demand and cost of utility materials have necessitated the need for effective Right of Way clearing. The most pressing issues in Right of Way clearing are: safety, environmental impacts, permit compliance (federal, state and local), improved environmental process efficiencies, accurate contract pricing, effective job sequencing and permitting to ensure maximized productivity and project profitability. Areas such as Right of Way mowing and herbicide side trimming, while still an important component of Right of Way management , is becoming less prevalent due to compliance challenges and is being replaced by a greater emphasis on innovative and effective Right of Way mechanical and chemical clearance (The Rist Group has the tools and processes in place to mitigate these factors where applicable). The trend toward innovative Right of Way clearing will likely continue as companies embrace new technologies and materials. As the energy and other relevant industries continue to evolve, the demand for Right of Way clearing contracts will likely remain strong.